$600,000 - Man's Constant Tooth Pain Enough To Uphold $600K Verdict, Judge Says.

Man's Constant Tooth Pain Enough To Uphold $600K Verdict, Judge Says
The Legal Intelligencer
February 1, 2001.

A verdict of $600,000 was not against the weight of evidence in a dental-malpractice case, a common pleas judge has ruled.

Therefore, Philadelphia Court of Common Pleas Judge Norman Ackerman said, Dr. Fred Sacks does not deserve a new trial, a j.n.o.v. and/or remittitur.

"Clearly, given the weight of evidence presented in support of plaintiffs' claim for monetary damages, the verdict of the jury in favor of the plaintiffs was not so clearly excessive that it shocks the conscience," Ackerman wrote in Bey v. Blumenthal. "To the contrary, the jury verdict amount was less than the amount of monetary damages calculated by plaintiffs' actuarial expert."

Robert Bey and his wife filed suit after Bey underwent oral and maxillofacial surgery alleging Sacks was negligent in his extraction of Bey's tooth. The suit also alleged Sacks failed to get the proper informed consent. Bey's wife sought damages for loss of consortium.

After the extraction, Bey claimed he suffered from chronic facial pain.

After an 11-day trial, the jury found in Sacks' favor on the negligence claim, but in Bey's favor on the informed consent claim. The jury awarded a verdict of $400,000 in Bey's favor and awarded $200,000 to Bey's wife.

$73,000 in delay damages were added to the final verdict.

Sacks filed post-trial motions, which were denied. He then appealed, generating Ackerman's opinion.

Sacks claims he is entitled to a j.n.o.v. and a new trial for six reasons - three of them evidence issues.

"Defendant Sacks seems to argue that because plaintiffs' experts failed to expressly use the term 'probability' as to the occurrence of the risk in their testimony, such testimony as a matter of law could not support their lack of informed consent," Ackerman wrote.

Ackerman said that Bey's expert, Dr. Marvin Gross, adequately testified to the risks of the extraction Bey received. On Sacks' second evidence issue, Ackerman said the Beys also presented sufficient evidence of causation of damages.

Sacks also asserts that the court erred in allowing Gross to testify about whether the risks of the procedure were explained to Bey.

"Dr. Gross here testified as to statements made by moving defendant in his deposition," Ackerman wrote. "Dr. Gross in this instance did not offer expert testimony but properly testified as to facts from moving defendant's deposition testimony which Dr. Gross had read and which was entered into evidence."

Ackerman also said the court was correct not to allow the defendant to cross-examine Bey on the issue of risks and alternatives provided in prior extractions made by other dentists or dental surgeons.

Ackerman said such an issue was a novel one and the court would not allow for "collateral circumstances to unnecessarily confuse the jury."

The court also said there was no judicial error when the court did not charge the jury on comparative negligence.

"Negligence concepts have no place in an informed consent claim," Ackerman said, because Pennsylvania has adopted the "prudent patient" standard.

The court charged mitigation of damages, and Ackerman said, since the jury only found against Sacks on the informed consent claim, a hypothetical failure to charge the jury on comparative negligence would have no impact on the jury's verdict.

The court concluded by rebutting Sacks' contention that the jury's award was so excessive that it warranted a new trial.

"Review of the trial testimony compels the conclusion that the verdict of the jury was fully supported by the evidence," Ackerman wrote. "Plaintiff, Robert Bey, testified that there was never a day when he was not in pain or that he did not need medication. Mr. Bey testified that he lives in pain seven days a week, twenty-four hours per day, and that he suffers from violent pain attacks."

Further, Ackerman said, Bey's actuarial expert calculated past and future wage loss to be more than $1 million, in addition to other losses. The court said the jury's verdict was not excessive, and in fact, lower than the actuarial expert concluded.

Accordingly, the court said Sacks is not entitled to a new trial or remittitur.